Understanding a Ma'amar

Yevamot | Yisrael Bankier | 13 years ago

The third perek contained many complex cases of yibum. One of the
details added to some of these cases was when a brother performed a
ma’amar to a yavamah (his late brother’s wife whom requires
yibum). From the Mishnayot learnt (2:1-2, 3:5-6), it appears that a
ma’amar does not replace or equal yibum, yet does form somewhat of a
connection between the brother and the yavamah. But what is a
ma’amar and what is its source?

The Rambam (Yibum 2:1) explains:

Rabbinically (midivrei sofrim), it was instituted that the yavam
would not be with his yavamah until he performs kidushin before
two witnesses with a prutah (coin) or something the value of a
prutah – this is called ma’amar. The ma’amar does not ‘acquire’
the yavamah completely [like yibum]…

The Rambam explains that the ma’amar is a rabbinically enacted
process that mirrors kidushin (see 2:2). It was enacted as an
intermediate stage before yibum in much the same way as kidushin is
an intermediate stage before nisuin (see Rambam Ishut 1:1-2).

However the very status of a ma’amar is a subject of debate in a
Mishnah (3:5):

Three brothers: two of which marry two sisters and the remaining
brother is single. One of the brothers dies, and [the single
brother] performs a ma’amar [but as yet has not performed
yibum]. After that, the other [sister-marrying] brother dies.
Beit Shammai say, the brother may stay with his wife [i.e. the
person to whom he performed a ma’amar] and the other sister can
leave [without even chalitzah] as she is the sister of his wife.
Beit Hillel says, he must give his ‘wife’ a get and perform
chalitzah and must [also] perform chalitzah to the other sister.

Beit Hillel’s understanding is consistent with the above explanation
of a ma’amar. In simple terms since a ma’amar is not complete
yibum, even though he performed a ma’amar she would still require
yibum. Consequently this is similar to a case of a person who is
required to perform yibum to two sisters. Each of the sisters is
defined as “achot zkukato” (the sister of the woman he is required to
perform yibum to) which is a (rabbinically) forbidden relationship.
The only difference is that since he performed a ma’amar to one of the
sisters, she would also require a get to “undo” it.

However Beit Shammai’s position seems to be more difficult. It appears
that once he performs the ma’amar, she is his wife completely (see the
Gemara for a full analysis of Beit Shammai’s opinion). Rashi
indeed explains that Beit Shammai hold that the ma’amar is
considered like yibum (“ke’knusa damya”). The question remains,
according to Beit Shammai, on what level is this ma’amar operating.

The Tosfot (Yevamot 29a s.v. Beit Shammai) maintain that the
ma’amar acquires on a biblical level. Rashi however (29b) appears to
state that even Beit Shammai agrees that it is only rabbinic. The
Tosfot find this position difficult when analysing many cases. For
example, in the case above, if the ma’amar was only affective on a
rabbinic level, according to Beit Shammai how could the other sister
leave and remarry without even chalitzah? (Achot zkukato requires
chalitzah!)

The Tosfot (s.v. ela) suggest that perhaps Rashi understands that
the ma’amar has the ability to remove the prohibition of achot
zkukato such that he may complete yibum. The other sister may leave
without chalitzah only after he does indeed complete yibum.
However this is not the simple understanding of the Mishnah. Also
Rashi (18a s.v. kinyan gamur) appears to state explicitly that a
ma’amar affects marriage in its fullest sense.

Alternatively the Rashba explains that Rashi agrees that Beit
Shammai hold that a ma’amar works on biblical level. The point
Rashi is making is that it is not equivalent to kidushin with
respect to the punishment associated with having relationship with
ba’alat ma’amar as compared to an arusa (engaged women).

R’ Kornfeld (http://www.dafyomi.co.il/yevamos/insites/ye-dt-029.htm)
suggests that Rashi may understand that according to Beit Shammai
perhaps a zikah alone is really considered like being married.
Therefore even without a ma’amar the remaining sister is considered
his wife’s sister. The Chachamim however rule stringently against this
rule in practice. The ma’amar in this case simply reverts the
Chachamim’s stringent ruling, thus enabling the other sister to leave
freely.